Research › Search › Judgment

Madras High Court · body

2003 DIGILAW 88 (MAD)

Nanjukutty & Others v. R. Kuppuswami & Another

2003-01-24

M.KARPAGAVINAYAGAM

body2003
Judgment :- Nanjukutty, the second defendant and the defendants 3 to 5 in O.S. No.11 of 1989 (the plaintiffs in O.S. No.479 of 1988), are the appellants herein and the plaintiff in O.S. No.11 of 1989 (who is the second defendant in O.S. No.479 of 1988) is the first respondent herein. 2. The first respondent/plaintiff filed the said suit against one Ayammal and the appellants/defendants for injunction in respect of the suit property. The appellants 2 to 4 filed a suit in O.S. No.479 of 1988 against the first respondent herein and one Periyathambi, seeking injunction in respect of the same property. 3. Both the suits were tried together. The suit in O.S. No.479 of 1988 filed by the appellants 2 to 4 was decreed only against Periyathambi, whereas the suit filed by the first respondent in O.S. No.11 of 1989 was dismissed. 4. Aggrieved by the judgement and decree passed in O.S. No.11 of 1989, Kuppuswami, the first respondent herein filed an appeal in A.S. No.85 of 1991 before the District Court. The District Court, after hearing the learned counsel for parties, allowed the appeal and decreed the suit in O.S. No.11 of 1989 in favour of Kuppuswami, the respondent herein and against the defendants, the appellants herein. Hence, this second appeal by the appellants/defendants 2 to 4 in the suit in O.S. No.11 of 1989. 5. The case of the first respondent/plaintiff in O.S. No.11 of 1989 is as follows:- "(a) The suit property was leased out to him by Ayammal, the first defendant, on an yearly rent of Rs.750/- and a lease deed was executed for the same on 14-7-1971. From that day onwards, the plaintiff was in possession of the suit property as a cultivating tenant. His name was also recorded as "cultivating tenant" in the revenue records. (b) The second defendant Nanjukutty Gounder is the brother of the husband of the first defendant. The defendants 3 to 5 are the sons of the second defendant. The first defendant demanded Rs.2,000/- as yearly rent. Since the plaintiff did not oblige for the same, the defendants tried to disturb the possession. Hence, the suit." 6. The first defendant did not choose to file written statement. The defendants 3 to 5 are the sons of the second defendant. The first defendant demanded Rs.2,000/- as yearly rent. Since the plaintiff did not oblige for the same, the defendants tried to disturb the possession. Hence, the suit." 6. The first defendant did not choose to file written statement. The defendants 2 to 5 filed written statement, contending that the properties, including the suit property were joint family properties and as such, the first defendant had no right to lease out one portion of the undivided joint family properties. The defendants 3 to 5 filed a suit in O.S. No.440 of 1983 for partition and in pursuance of the decree on compromise, the suit property was allotted to the defendants 3 to 5 and thereafter, the property has been in possession and enjoyment of the defendants. Since there was disturbance to their possession, they have filed the suit in O.S. No.479 of 1988 against the plaintiff in O.S. No.11 of 1989, the first respondent herein and one Periyathambi and as a counter-blast, the suit in O.S. No.11 of 1989 has been filed by the first respondent herein. Therefore, the suit is liable to be dismissed. 7. The plaintiff in O.S. No.11 of 1989 examined himself as P.W.1 and one Kanagaraj was examined as P.W.2 and Exs.A-1 to A-8 were filed on the side of the plaintiffs. The third defendant in O.S. No.11 of 1989 examined himself as D.W.1 and two other witnesses were examined as D.Ws.2 and 3 and Exs.B-1 to B-21 were filed. 8. Since both the suits would relate to same property, a joint trial was held and common judgment was rendered by the trial Court. After framing necessary issues, the trial Court decreed the suit in O.S. No.479 of 1988 filed by the defendants 3 to 5 in O.S. No.11 of 1989, only as against Periyathambi, the first defendant in O.S. No.479 of 1988 and dismissed the suit in O.S. No.11 of 1989 filed by Kuppuswami, the second defendant in O.S. No.479 of 1988. 9. Though the decree was passed in respect of the suit property as against the first defendant in O.S. No.479 of 1988, he did not choose to file any appeal. On the other hand, the plaintiff in O.S. No.11 of 1989 filed an appeal against the dismissal of the said suit. 9. Though the decree was passed in respect of the suit property as against the first defendant in O.S. No.479 of 1988, he did not choose to file any appeal. On the other hand, the plaintiff in O.S. No.11 of 1989 filed an appeal against the dismissal of the said suit. As such, the decree passed in favour of the plaintiffs in O.S. No.479 of 1988 (defendants 3 to 5 in O.S. No.11 of 1989) in respect of the suit property, holding that they are in possession of the same, though it was only against Periyathambi (the first defendant in O.S. No.479 of 1988), the same has become final. However, the appellate Court, without going into the said aspect, set aside the judgment and decree passed in O.S. No.11 of 1989 and decreed the suit in favour of the first respondent/plaintiff, viz., Kuppuswami. Challenging the said finding, the second appeal has been filed by the appellants (defendants 2 to 5 in O.S. No.11 of 1989). 10. At the time of admission of the second appeal on 2-7-1992, this Court formulated the following substantial questions of law:- "(i) Whether the judgment of the lower appellate Court is vitiated in that it has completely failed to consider the vital admissions made by the plaintiff/respondent? and (ii) Whether the judgment of the lower appellate Court is vitiated in that it has thrown the burden of proof on the appellants/defendants?" 11. In elaboration of the above substantial questions of law, arguments were advanced by learned counsel for the appellants. 12. In reply, learned counsel for the first respondent would submit in justification of the reasonings given by the lower appellate Court. 13. I have carefully considered the rival contentions urged by learned counsel for both parties. 14. The subject matter, namely the suit property is one and the same in both the suits filed by both parties. Admittedly, there is a decree passed by the trial Court in O.S. No.479 of 1988 in favour of the plaintiffs therein, holding that the suit property is in possession of them. Strangely, without challenging the said finding, the first respondent herein (plaintiff in O.S. No.11 of 1989) filed appeal only in respect of the decree passed in O.S. No.11 of 1989 by the trial Court, dismissing the suit. Strangely, without challenging the said finding, the first respondent herein (plaintiff in O.S. No.11 of 1989) filed appeal only in respect of the decree passed in O.S. No.11 of 1989 by the trial Court, dismissing the suit. The appellate Court also, without considering the said question, simply allowed the appeal and decreed the suit in O.S. No.11 of 1989, mainly on the ground that the appellants (defendants 2 to 5 in O.S. No.11 of 1989) have not proved their possession. 15. The case of the plaintiff is that he obtained possession on 14-7-1971 on the strength of Ex.A-1 lease deed and from then onwards, he has been in possession. He has also produced Exs.A-2 and A-4 to establish that he was a cultivating tenant. He has also produced Exs.A-5, A-6 and A-7, the adangal extracts to show that the property was in his enjoyment and possession. 16. Admittedly, Exs.A-5 to A-7 would relate to fasli 1394, 1395 and 1397. But, on behalf of the defendants, Exs.B-2 and B-3 were marked and those are the adangal extracts relating to faslis 1398 and 1399. There is no document produced by the plaintiff to show that the plaintiff was in possession of the suit property as a cultivating tenant on the date of suit. On the other hand, it is the contention of the defendants that after the compromise decree was passed, the suit property was allotted to the defendants and consequently, they have been in possession from the year 1987. 17. It is the further case of the defendants that after taking possession, they have constructed a house in the suit property. To prove the same, D.Ws.2 and 3 were examined. 18. The trial Court has clearly found that the house was constructed in the suit property by the defendants, the appellants herein and in their name, house tax receipts were filed as Exs.B-5 to B-7. The trial Court would further hold that the evidence of D.W.1 with reference to the rental amount, is unreliable, in view of absence of the said aspect in Ex.A-1, the lease deed. The trial Court would further hold that the evidence of D.W.1 with reference to the rental amount, is unreliable, in view of absence of the said aspect in Ex.A-1, the lease deed. Even assuming that the plaintiff was the cultivating tenant under the first defendant, the evidence by the defendants--oral and documentary, would clearly show that the suit property has been in possession of the defendants and that the house has been constructed by them and house tax receipts have also been obtained in the name of the defendants. The plaintiff has filed the suit merely for bare injunction. 19. Under those circumstances, in the absence of proof that the plaintiff was in possession of the suit property on the date of suit, the plaintiff would not be entitled to the relief of injunction. 20. In fine, the judgment and decree of the lower appellate Court, allowing A.S. No.85 of 1991 filed by the first respondent herein are set aside and the judgement and decree of the trial Court in O.S.No.11 of 1989, dismissing O.S. No.11 of 1989 filed by the first respondent herein are restored. Thus, the second appeal is allowed. No costs. C.M.P. No.8169 of 1992 is closed.